Viswambharan vs State of Kerala

A. Hariprasad, J.—Appeal filed u/s 374(2) of the Code of Criminal Procedure Code (for short, "Cr.P.C.").

Appellant was tried, convicted and sentenced by the learned Additional Sessions Judge (Adhoc-I) Kollam for an offence u/s 55(a) of the Abkari Act (for short, "Act"). Learned counsel for the appellant submitted before this Court on 05.09.2013 that the appellant expired. Considering the fact that the appellant was sentenced to undergo imprisonment and directed to pay fine, this Court found that the conviction and sentence will not abate in view of Section 394 Cr.P.C. Therefore, opportunity was given to the legal heirs of the appellant to get themselves impleaded in the appeal. In spite of giving sufficient time, nobody turned up to get impleaded in the appeal. Learned counsel for the appellant submitted that in spite of sending letters, nobody responded. I have carefully perused the records as to find out whether the conviction and sentence are legal and proper.

Prosecution case, in short, is that on 20.06.1997 at about 6.30 a.m., the detecting officer found the appellant carrying a can having a capacity of five litres. On examination, it was found that it contained 1.5 litres of arrack. After arresting the appellant and preparing material records, the crime was registered and the appellant was produced before the court. After committal of the case to the Court of Sessions, the appellant was tried before the learned Additional Sessions Judge. At the trial, four witnesses were examined and seven documents marked on the side of the prosecution. MO1 is the can possessed by the appellant which contained the illicit arrack.

Heard the learned Public Prosecutor and perused the records.

PW1 on 20.06.1997 was working as the Excise Inspector, Karunagappally. He along with his party were engaged in patrol duty. PW1 deposed that near the Office of the Cattle Improvement Assistant, the appellant was seen walking with a can in his hand. His behaviour evoked suspicion in the mind of the detecting officer. On examination of the can, it was found that it contained illicit arrack. He was possessing about 1.5 litres of illicit arrack. Thereafter, the appellant was arrested. Ext.P1 mahazar was prepared by PW1. The witnesses present there put their signatures on Ext.P1. Exts.P2 and P3 arrest memos were also prepared. Arrest of the appellant was intimated to his close relatives. The properties were produced before the court on the date of occurrence itself. PW1 submitted a report before the court to draw sample from the contraband for the purpose of chemical analysis. It is seen from the evidence of PW1 that he has complied with all the legal formalities without any breach. In spite of cross-examination, his evidence remains credible and acceptable. PW2 was the Preventive Officer, who accompanied PW1. He also deposed about the detection of offence and arrest of the appellant. There was no effective cross-examination on PW2. PWs 3 and 4 are the independent witnesses cited to prove detection of the offence, seizure of contraband and other formalities thereafter. Even though they turned hostile to the prosecution case, unchallenged testimony of PWs 1 and 2 would clearly show that the accused had committed the offence as alleged by the prosecution. Further, Exts.P1 to P5 documents were prepared contemporaneous to the detection. There is no challenge against these documents. Therefore, I find the court below was perfectly right in convicting the appellant for illegally possessing arrack.

Since the appellant expired pending the appeal, the substantive sentence becomes inoperative. However, the court below imposed a fine of Rs. 1,00,000/- u/s 55(a) of the Act. The default sentence also cannot be enforced. Considering the evidence on record, I do not find any reason to interfere with the imposition of fine on the appellant as it is the statutory minimum prescribed. Therefore, I find no merit in the appeal.

The appeal is disposed of as mentioned above.

All pending interlocutory applications will stand dismissed.